An Open Search : BYU Puzzle: Case of the Missing Art

By the time BYU approached Hammer, the drawings had been missing from the university for 18 years, and Hammer had long since sold both of them. However, the Homer drawing still was in the possession of M. Knoedler and Co., a New York gallery owned by Hammer. He instructed the gallery to return it to the university.

But the happy ending--at least from the university's viewpoint--of the Hammer episode has not been the rule. In most other instances, current holders of the art works have resisted their return, and BYU has found itself plunged into thorny moral and legal dilemmas.

'Send It Back'

"You would think," Day said, "that we could just say to these people, 'Look, it left our collection without our permission and there's no record of any sale or trade. Unless you can prove otherwise, send it back.' "

Day sighed. "It's turned out not to be that simple."

The university has discovered, for example, that under some circumstances innocent buyers may now rightfully own the art works, whether or not they were purloined from BYU. In recent years courts have ruled that an art work can lose its taint and become legitimate property if the first owner does not pursue his claims quickly.

In 1987, for example, a federal court decided that a $500,000 Monet painting should not be returned to a German owner even though it clearly had been stolen in the aftermath of World War II. The court argued that the German family had not tried hard enough to find the painting in the intervening years, during which time the piece was advertised in art catalogues and offered at auctions. The family's failure to pursue the painting, the court said, effectively terminated its claim.

Unfortunately for BYU, the university has often found itself in a position similar to that of the German owner. Some of the BYU thefts occurred in the late 1960s, yet the university did not track them down until the late 1980s. As with the Monet painting, BYU's missing art works often were shown publicly without the university intervening.

These legal barriers may be one reason why the university's campaign has not met with much success. Thus far only about 40 of the 1,200 missing pieces have been recovered, and art department officials say they expect that the great majority of art works will never return.

Chief among the resisting owners is the Metropolitan Museum of Art, which has refused thus far to return a painting by American artist J. Alden Weir. Ashton Hawkins, counsel for the museum, said the Metropolitan has resisted primarily because the museum believes that BYU abandoned its claim to the painting by waiting so long to announce its ownership.

"I doubt very much that they have any legal claim," Hawkins said. Negotiations are still under way, he said, and suggested that some compromise might be found, such as sending the painting to BYU on a long-term loan.

With the legal situation so murky, BYU has decided to make an ethical appeal to current holders. Last year the university published a list of the more important missing works in IFAR Reports, a New York journal specializing in stolen art, and asked for information as to its whereabouts. And soon, the university will mail a letter to the known holders asking for their cooperation.

"Lawsuits are very expensive and we don't know that we would prevail," said William Fillmore, associate general counsel for the university. "For the most part we are going to have to rely on people's good will and sense of what is right."

Just how BYU got into this fix is a sad story. It begins in 1960 when the university was bequeathed the art collection of Mohonri Young, an artist himself and a member of one of Mormondom's main families. The Young collection doubled the size of the universities holdings overnight, and added paintings by Weir, Homer, Maynard Dixon, and even some drawings by Rembrandt.

Available to Faculty

Without a museum, the art was made available to faculty members who needed wall decoration. Professors would be allowed into the storage rooms, where they could choose from among the paintings, some of which were worth tens of thousands of dollars. Sometimes records of the loans were made; sometimes not.

One member of the art faculty who realized the importance of the collection was Wesley M. Burnside. An expert on Western American painting, Burnside was driven by the desire to build an outstanding art collection at BYU and a grand museum in which to display it. The donation by Young meshed perfectly with his ambitions.

The artworks were important to Burnside not because they represented the art he craved for the university, but because they gave him pieces that he could trade. And trade he did.

Working with a coterie of art dealers from New York, Los Angeles and Salt Lake City, Burnside soon was making deals at a feverish pace. Some of the trades were approved by a faculty committee appointed to oversee the collection, but, according to BYU officials, many were unauthorized trades made by Burnside alone.